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Navajo Nation Complain Too Late About Alleged "Trust" Violation

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Read your local newspaper. Do not underestimate the value of subscribing to a local daily or business newspaper and reading its legal advertisements.  The Navajo Nation’s failure to do that was the important lynch-pin in the ongoing, historical wrangling between the Hopi Tribe and Navajo Nation in a dispute that landed before the Interior Board of Indian Appeals (IBIA) of the Bureau of Indian Affairs. [1]

2 1/2 Years Late

The May 19, 2019, decision sustained the Hopi Tribe’s efforts to put land into trust over the objection of the Navajo. The objection was ruled “untimely” because the Navajo Nation had not filed them within the 30 days of the notice’s publication in the local newspaper.  In fact, the Navajo Nation’s objection was lodged nearly two and a half years late, in August 2016. The land had been placed in trust in December 2013.

On December 16, 2013, the Acting Western Regional Director of the Bureau of Indian Affairs placed 210.85 acres of land into trust at the request of the Hopi Tribe.  Three days later, a legal notice was published in the Arizona Daily Sun, a Flagstaff, Arizona newspaper, that provided written notice of this action. The land, known as the Twin Arrows Property, was placed in trust for the Tribe pursuant to Section 5 of the Navajo-Hopi Land Dispute Settlement Act of 1996, P.L. 104-301, 110 Stat. 3649, as amended.

The Navajo Nation unsuccessfully argued that it should have been given written notice since the Nation was listed on a road easement found in the Coconino County records. The Code of Federal Regulations, amended in 2013, actually allows for notice that land is being put into trust by two different means.   One way is for an interested party to notify a Bureau of Indian Affair’s official in writing of his or her interest in the land. The official is then obligated to provide the party written notice when the land goes into trust.  The second way is for the official to notify the public at-large by publishing the decision in a newspaper.  

Ruling

The IBIA held that being listed on a county record did not function as a notification to the appropriate official for the purpose of thereafter requiring the official to provide written notice that the land was going into trust.  If the Navajo Nation wanted to be notified, the court held, it had a duty to notify the BIA in writing that they had an interest in the decision. 

“The regulations require an interested party to take affirmative, written action, directed at the deciding official, to make their interest in the trust acquisition known. Reliance on a previously recorded property interest, as Appellants attempt to do here, does not meet that burden. We conclude that Appellants did not make themselves known, in writing, to the Regional Director before the Decision was issued, and thus they were not entitled to actual written notice of the Decision. See 25 C.F.R. § 151.12(d)(2)(ii)(A). Therefore, BIA's only obligation for giving notice of the Decision to Appellants was to provide constructive notice through publication, which was done on December 19, 2013. The administrative appeal period applicable to Appellants began on the date of first publication on December 19, 2013, see id. § 151.12(d)(3)(ii), which is deemed their “date of receipt” of the Decision, see 78 Fed Reg. at 32219; Geyser, 63 IBIA at 302.”

Publication of the decision started the clock running. The Navajo Nation had 30 days after the December 19, 2013 publication to object to the land into trust decision, which they did not do. Read those newspapers!

If you have a legal issue you need help with, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958.

 

[1] NAVAJO NATION AND NAVAJO NATION GAMING ENTERPRISE, APPELLANTS v. ACTING WESTERN REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, APPELLEE., 66 IBIA 237, 242, 2019 WL 2193982, at *4

 

About the AuthorKimberly Craven

Kimberly Craven is a passionate, highly-motivated Indian law and policy expert who has a wealth of experience when it comes to assisting Tribal peoples to protect their rights, save their homelands and dramatically improve their standards of living. In particular, she has in-depth expertise in issues that have proven to have a significant impact on that critical government-to-government relationship. Her sage counsel has been sought by the Eastern Shoshone Tribe in Wyoming, the Ute Mountain Ute Tribe in Colorado, the Oglala Sioux Tribal Court in South Dakota as well as the Hopi Tribe in Arizona. Kimberly served as the Executive Director for the Governor’s Office of Indian Affairs where she was responsible for managing the intergovernmental relationship between the State of Washington and the 29 federally recognized Tribes within the State’s boundaries. In the capacity of fighting for Tribal rights, she has also served as a General Attorney, Chief Judge, and Associate Magistrate. Plus, she has worked tirelessly for a number of non-profit organizations dedicated to improving social and economic conditions for Native peoples, including one that successfully defended Tribal treaty fishing rights for the Columbia River in Oregon. In addition, she has handled a wide variety of Indian Child Welfare cases. Kimberly earned her Juris Doctor degree from the University of Colorado School of Law and then went on to complete her L.L.M. in Indigenous Peoples Law & Policy from the University of Arizona. When Kimberly isn’t exercising her right to champion causes for Tribal peoples, she enjoys exercising, cooking and curling up with a good book.

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